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COMMONWEALTH v. CONN (03/20/57)

March 20, 1957

COMMONWEALTH
v.
CONN, APPELLANT.



Appeal, No. 182, April T., 1956, from order of Court of Common Pleas of Allegheny County, Jan. T., 1956, No. 1842, in case of Commonwealth of Pennsylvania v. Conn. Order affirmed.

COUNSEL

Charles E. McKissock, for appellant.

Allen N. Brunwasser, with him Jos. O'Connell, Edward C. Boyle, District Attorney, and William Claney Smith, Assistant District Attorney, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Carr, JJ.

Author: Hirt

[ 183 Pa. Super. Page 145]

OPINION BY HIRT, J.

On July 8, 1955 Allen C. Gregg an agent of the Western Pennsylvania Humane Society lodged an information with Alderman Leonard A. Civill in Pittsburgh, charging the defendant with cruelty to animals. The specific charge was that she on that date "did cruelly torture a certain Doberman Pinscher by not giving said dog proper food, water and shelter and also by cruel manhandling said dog ..." The defendant was arrested and was brought before the magistrate (Act of June 3, 1911, P.L. 654, 18 PS § 3120)

[ 183 Pa. Super. Page 146]

    and after hearing on July 11, 1955, in a summary proceeding, was convicted of the charge; on August 11, 1955 the sentence of a fine was imposed which she paid forthwith, together with the alderman's costs.

Although the defendant was represented by counsel in the proceeding before the alderman no appeal was taken to the County Court of Allegheny County until August 22, 1955. This was beyond the period of ten days allowed by the Act of April 17, 1876, as last amended by the Act of June 3, 1953, P.L. 272, 19 PS § 1189. The appeal was allowed nunc pro tunc by a judge of the County Court, in the first instance, but was quashed on August 29, 1955, after hearing, by the same judge for the reason that no equitable reason for the allowance of the appeal had been shown. Cf. Commonwealth v. Keul, 163 Pa. Superior Ct. 550, 63 A.2d 463. There was no appeal to us from that order of the county court.

On November 23, 1955 defendant petitioned the Court of Common Pleas of Allegheny County for a writ of certiorari. A rule was granted on the application and the alderman was directed to submit his transcript of the proceeding before him. After hearing before Judge WEISS the rule was discharged and the prayer of petitioner denied. From that order entered on March 14, 1956, the present appeal was taken.

The Act of March 20, 1810, P.L. 208, 5 Sm.L. 161, 42 PS § 951 provides: "That no judgment shall be set aside in pursuance of a writ of certiorari, unless the same is issued within twenty days after judgment was rendered ..." Defendant was convicted before the magistrate in the instant case on August 11, 1955 and judgment of sentence was then entered. Defendant did not petition ...


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